ex10_1.htm


    
      

    

    Exhibit
10.1

     

    
      Execution
Copy

    

     

    LOAN
AGREEMENT

    


    THIS LOAN AGREEMENT (this “Agreement”), dated as
of August 13, 2008, is made by and among OccuLogix, Inc. (the
“Lender”), a Delaware
corporation with its principal office located at 2600 Skymark Avenue, Building
9, Suite 201, Mississauga, Ontario, L4W 5B2, Canada, and OcuSense, Inc. (the
“Borrower”), a Delaware
corporation with its principal office located at 12707 High Bluff Drive, Suite
200, San Diego, CA  92130, United States of America.

     

    BACKGROUND

     

    A.          
 Pursuant to that certain Agreement and Plan of Merger and Reorganization,
dated as of April 22, 2008, by and among the Lender, OcuSense Acquireco, Inc.
and the Borrower, as amended by that certain Amending Agreement, dated as of
July 28, 2008, by and among the Lender, OcuSense Acquireco, Inc. and the
Borrower (as so amended, the “Merger Agreement”), the
Lender proposes to acquire the minority ownership interest in the Borrower that
the Lender does not already own.

     

    B.       
    Until the completion of the merger and the other
transactions contemplated by the Merger Agreement, it is in the best interests
of both the Lender and the Borrower for the Lender to advance a loan to the
Borrower for its general corporate purposes.

     

    C.         
  The Lender has agreed to provide such a loan to the Borrower on the
terms and conditions set forth herein.

     

    NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Lender and the Borrower hereby agree as
follows:

     

    ARTICLE
I

    LOAN

     

    1.1           Loan.  The
Lender hereby agrees that, concurrently with the execution and delivery of this
Agreement, and subject to the satisfaction or waiver of the closing conditions
set forth in Article V, the Lender shall advance to the Borrower a U.S. dollar
loan in the aggregate principal amount of $2,000,000 (the “Loan”).

     

    1.2           Maturity
Date.  The maturity date of the Loan (the “Maturity Date”) shall be the
270th day
following the date hereof.

     

    1.3           Interest.  From
the date hereof until repaid in full, interest shall accrue on the unpaid
principal amount outstanding hereunder on a quarterly basis, without allowance
or deduction, at a rate of 12% per annum, and shall be payable on the earliest
to occur of (i) the Maturity Date and (ii) an Event of Default (defined
below).


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    1.4           Repayment.  In
the absence of any Event of Default (defined below), on the Maturity Date, the
Borrower shall pay the Lender, in cash, the aggregate principal amount of the
Loan plus
accrued and unpaid interest thereon, calculated in accordance with Section
1.3.

     

    1.5           Use of
Proceeds.  The Borrower shall not use any proceeds of the Loan,
other than for working capital purposes, capital expenditures and other general
corporate purposes that are not otherwise prohibited or restricted by the Merger
Agreement.

     

    ARTICLE
II

    REPRESENTATIONS
AND WARRANTIES

     

    2.1           Representations and
Warranties of the Borrower.  The Borrower hereby represents and
warrants to the Lender as follows:

     

    (a)           Organization and
Qualification.  The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the requisite legal authority to own and use its properties and assets
and to carry on its business as currently conducted.  The Borrower is
not in violation of any of the provisions of its certificate of incorporation,
bylaws or other organizational or charter documents.  The Borrower is
duly qualified to do business and is in good standing as a foreign corporation
or other entity in each jurisdiction in which the nature of the business
conducted or property owned by the Borrower makes such qualification necessary,
except where the failure to be so qualified or in good standing, as the case may
be, would not, individually or in the aggregate, have, or reasonably be expected
to result in, a Material Adverse Effect (defined below).  In this
Agreement, “Material Adverse
Effect” means (i) a material adverse effect on the results of operations,
assets, business or financial condition of the Borrower or (ii) material and
adverse impairment of the Borrower’s ability to perform its obligations under
this Agreement, provided that the
following alone shall not be deemed, in and of itself, to constitute a Material
Adverse Effect:  changes in general economic conditions or changes
affecting the industry in which the Borrower operates generally (as opposed to
Borrower-specific changes) so long as such changes do not have a
disproportionate effect on the Borrower.

     

    (b)           Authorization;
Enforcement.  The Borrower has the requisite corporate
authority to enter into this Agreement and to carry out its obligations
hereunder.  The execution and delivery of this Agreement have been
duly authorized by all necessary corporate action on the part of the
Borrower.  This Agreement has been duly executed and delivered by the
Borrower and constitutes a legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, except as may be
limited by (i) applicable bankruptcy, insolvency, reorganization or other laws
of general application relating to or affecting the enforcement of creditors’
rights generally and (ii) the effect of rules of law governing the availability
of specific performance and other equitable remedies.


    
      
         


      

      
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    (c)           No
Conflicts.  The execution and delivery by the Borrower of this
Agreement, and the performance by the Borrower of its obligations hereunder, do
not and will not (i) conflict with or violate any provision of the Borrower’s
certificate of incorporation, bylaws or other organizational or charter
documents, (ii) conflict with, or constitute a default under (or an event that,
with notice or lapse of time or both, would become a default under), or give to
others any rights of termination, amendment, acceleration or cancellation under
(with or without notice, lapse of time or both), any agreement, credit facility,
debt or other instrument evidencing a debt of the Borrower or other
understanding to which the Borrower is a party, or by which any of its
properties or assets is bound, except to the extent that such conflict or
default or termination, amendment, acceleration or cancellation right would not
reasonably be expected to have a Material Adverse Effect, or (iii) result in a
violation of any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority to which the Borrower
is subject, or by which any of its properties or assets is bound, except to the
extent that such violation would not reasonably be expected to have a Material
Adverse Effect.

     

    (d)           Litigation.  There
is no action, suit, claim or proceeding or, to the knowledge of the Borrower,
inquiry or investigation, before or by any court, public board, government
agency, self-regulatory organization or body pending or, to the knowledge of the
Borrower, threatened against or affecting the Borrower that would be reasonably
expected, individually or in the aggregate, to have a Material Adverse
Effect.

     

    ARTICLE
III

    NEGATIVE
PLEDGE

     

    3.1           Liens.  So
long as there shall be any indebtedness, obligations or liabilities, present or
future, absolute or contingent, matured or not, at any time owing by the
Borrower to the Lender, or remaining unpaid to the Lender, under or in
connection with this Agreement (“Outstanding Obligations”),
the Borrower will not, without the prior written consent of the Lender, create,
incur, assume or suffer to exist, or permit to be created, incurred, assumed or
suffered to exist, any Lien (defined below) upon any of its properties, assets
or revenues, whether now owned or hereafter acquired, including any of its
intellectual property or proprietary rights of any description, whether existing
on the date hereof or afterward conceived or developed.  In addition
and without limiting the generality of the foregoing, so long as there shall
exist any Outstanding Obligations, the Borrower will not, without the prior
written consent of the Lender, sign or file, or permit to be filed, under the
Uniform Commercial Code or any equivalent statute in any jurisdiction, any
financing statement that names the Borrower as debtor.  In this
Agreement, “Lien” means
any mortgage, lien, pledge, charge, hypothecation, security interest or
encumbrance of any kind, whether or not filed, recorded or otherwise perfected
under applicable law and includes any conditional sale or other title retention
agreement, any lease in the nature thereof and any option or other agreement to
sell or give a security interest, provided that, in no
event, shall an operating lease be deemed to constitute a Lien.


    
      
         


      

      
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    ARTICLE
IV

    COVENANTS

     

    4.1           Covenants of the
Borrower.  The Borrower hereby agrees:

     

    (a)           to
pay, whenever due, all principal, interest and other amounts outstanding under
this Agreement;

     

    (b)           to
comply with all of its obligations under this Agreement and the Merger
Agreement;

     

    (c)           to
notify the Lender promptly of (i) any breach by the Borrower of its
representations and warranties or covenants herein or in the Merger Agreement
and (ii) any Event of Default (defined below);

     

    (d)           not
to sell, lease, license or otherwise dispose of any of its properties or assets
(whether tangible or intangible), without the prior written consent of the
Lender; and

     

    (e)           to
do, or cause to be done, all things necessary or desirable to maintain the
Borrower’s existence and good standing under the laws of the State of Delaware
and the Borrower’s legal authority to own and use its properties and assets and
to carry on its business as currently conducted.

     

    ARTICLE
V

    CONDITIONS

     

    5.1           Closing Conditions in Favor of the
Lender.  The obligation of the Lender to advance the Loan to
the Borrower pursuant to Section 1.1 is subject to the satisfaction, or the
waiver by the Lender, on or prior to such advance (the “Closing”), of each of the
following conditions:

     

    (a)           Representations and
Warranties.  The representations and warranties of the Borrower
contained herein shall be true and correct as of the Closing; and

     

    (b)           Performance.  The
Borrower shall have performed, satisfied and complied with all covenants,
agreements and conditions required by this Agreement or the Merger Agreement to
be performed, satisfied or complied with by it.

     

    ARTICLE
VI

    EVENTS OF
DEFAULT

     

    6.1           Events of
Default.  The occurrence of any of the following events shall
constitute an “Event of
Default”:


    
      
         


      

      
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    (a)           Failure to
Pay.  The Borrower defaults in the payment, when due and
payable, of the aggregate principal amount of the Loan plus accrued and
unpaid interest thereon, calculated in accordance with Section 1.3, and such
default continues for five days or longer;

     

    (b)           Breach of Representation and
Warranty or Covenant.  Without duplication of Section 6.1(a),
the Borrower breaches, in a material respect, any representation and warranty or
covenant contained herein or in the Merger Agreement and fails to remedy such
material breach, to the satisfaction of the Lender, on or prior to the seventh
day following the earlier to occur of (i) the date on which the Lender notifies
the Borrower, in writing, of such material breach and (ii) the date on which the
Borrower becomes aware of such material breach; or

     

    (c)           Bankruptcy.  The
Borrower (i) commences a voluntary case or proceeding, (ii) consents to the
entry of an order for relief against it in an involuntary case or proceeding,
(iii) consents to the appointment of a trustee, receiver, receiver and manager,
liquidator, administrator or other similar official of it or for all or
substantially all of its properties and assets, (iv) makes a general assignment
for the benefit of its creditors, (v) consents to the filing of a petition in
bankruptcy against it or (vi) takes any comparable action, under Title 11 of the
United States Code, as such law may be supplemented or amended from time to
time, together with all rules, regulations and instruments made thereunder, or
any other similar U.S. federal or state law or foreign law (including Canadian
law) relating to bankruptcy, insolvency, winding up, administration,
receivership or other similar matters.

     

    Upon an
Event of Default, the Lender may declare the aggregate principal amount of the
Loan plus
accrued and unpaid interest thereon, calculated in accordance with Section 1.3,
to be due and payable immediately.  Without derogating from the
generality of Section 6.1(b), the Lender and the Borrower hereby acknowledge and
agree that a breach by the Borrower of any of the provisions of Section 3.1 or
Section 4.1(d) shall constitute a material breach for purposes of Section 6.1(b)
and, therefore, an Event of Default. 

     

    ARTICLE
VII

    GENERAL

     

    7.1           Amendments;
Waivers.  No provision of this Agreement may be amended or
waived except in a written instrument signed by the parties
hereto.  No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of any party hereto to exercise any right hereunder in any manner
impair the exercise of any such right.

     

    7.2           Notices.  Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice
or communication is delivered via facsimile or e-mail at the facsimile number or
e-mail address referred to in this Section 7.2 prior to 6:30 p.m. (Eastern time)
on a day that is not a Saturday, a Sunday or a statutory holiday on which banks
in New York City are not open for business (a “Business Day”), (b) the
next Business Day after the date of transmission, if such notice or
communication is delivered via facsimile or e-mail at the facsimile number or
e-mail address referred to in this Section 7.2 on a day that is not a Business
Day or later than 6:30 p.m. (Eastern time) on any Business Day, (c) the
Business Day following the date of deposit with a nationally recognized
overnight courier service or (d) upon actual receipt by the party to whom
such notice is required to be given.  The addresses, facsimile numbers
and e-mail addresses for such notices and communications are those set forth on
the signature pages hereof, or such other address, facsimile number or e-mail
address as may be designated in writing hereafter, in the same manner, by the
relevant party hereto.


    
      
         


      

      
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    7.3           Survival.  All
representations and warranties and covenants herein shall survive the execution
and delivery of this Agreement and the advance of the Loan.

     

    7.4           Headings.  The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.

     

    7.5           Meaning of “Including”.  The
word “including”,
whenever used in this Agreement, shall be deemed to be followed by the phrase
“without
limitation”.

     

    7.6           Entire
Agreement.  This Agreement contains the entire understanding of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral or written, with respect to such
matters, which the parties hereto acknowledge have been merged into such
agreements and exhibits.  At and after the Closing, and without
further consideration, the parties hereto will make, do and execute and deliver,
or cause to be made, done and executed and delivered, such further acts, deeds,
assurances, documents and things as may be reasonably requested by any of the
other parties hereto in order to give practical effect to the intention of the
parties hereunder.

     

    7.7           Successors and
Assigns.  This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.  The Borrower may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the
Lender.  

     

    7.8           No Third Party
Beneficiaries.  This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any other
person or entity.

     

    7.9           Governing Law;
Venue.  This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws
thereof.  Each of the parties hereto irrevocably consents to the
exclusive jurisdiction and venue of any court within the State of Delaware, in
connection with any matter based upon or arising out of this Agreement or the
matters contemplated herein, agrees that process may be served upon such party
in any manner authorized by the laws of the State of Delaware for such person
and waives and covenants not to assert or plead any objection which it might
otherwise have to such jurisdiction, venue and such process.


    
      
         


      

      
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    7.10           Waiver of Jury
Trial.  Each of the parties hereto hereby irrevocably waives
all right to trial by jury and any action, proceeding or counterclaim (whether
based on contract, tort or otherwise) arising out of, or relating to, this
Agreement or the actions of any party hereto in the negotiation, administration,
performance or enforcement hereof. 

     

    7.11           Execution.  This
Agreement may be executed by the parties hereto on separate counterparts
(including by facsimile or e-mail transmission), all of which when taken
together shall be considered one and the same agreement.  In the event
that any signature is delivered by facsimile transmission or e-mail attachment,
such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force
and effect as if such facsimile or e-mail-attached signature page were an
original thereof.

     

    7.12           Severability.  If
any provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties hereto will attempt to agree upon a valid and enforceable provision that
is a reasonable substitute therefor, and upon so agreeing, shall incorporate
such substitute provision in this Agreement.

     

    [SIGNATURE
PAGE TO FOLLOW]


    
      
         


      

      
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    IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their
respective authorized signatories as of the date first indicated
above.

     

     

    
      	 
      	
              OCCULOGIX,
      INC.

            
	 
      	 
      
	 
      	 
      
	 
      	
              By:

            	
              /s/ William G.
      Dumencu

            
	 
      	 
      	
              Name:
      William G. Dumencu

            
	 
      	 
      	
              Title:  
      Chief Financial Officer and Treasurer

            
	 
      	 
      	 
      
	 
      	
              Address for
      Notices:

            
	 
      	
              2600
      Skymark Avenue

            
	 
      	
              Building
      9, Suite 201

            
	 
      	
              Mississauga,
      Ontario

            
	 
      	
              L4W
      5B2

            
	 
      	 
      
	 
      	
              Fax
      No.:  905-602-7623

            
	 
      	
              Telephone
      No.:  905-602-0887

            
	 
      	
              E-mail:  bill.dumencu@occulogix.com

            
	 
      	 
      
	 
      	
              Attention:  William
      G. Dumencu

            
	 
      	 
      
	 
      	 
      
	 
      	
              OCUSENSE,
      INC.

            
	 
      	 
      
	 
      	 
      
	 
      	
              By:

            	
              /s/ Eric Donsky

            
	 
      	 
      	
              Name:  Eric
      Donsky

            
	 
      	 
      	
              Title:    CEO

            
	 
      	 
      
	 
      	
              Address for
      Notices:

            
	 
      	
              12707
      High Bluff Drive, Suite 200

            
	 
      	
              San
      Diego, CA  92130

            
	 
      	 
      
	 
      	
              Fax
      No.:  858-794-1493

            
	 
      	
              Telephone
      No.:  858-794-1422

            
	 
      	
              E-mail:  edonsky@tearlab.com

            
	 
      	 
      
	 
      	
              Attention:  Eric
      Donsky

            


    

    


    
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